We've produced guidance for junior doctors on the impact of COVID-19 on your contract terms and conditions.
Your rota in the second wave
As a second wave of the COVID-19 pandemic progresses, alongside the backlog of elective work, and anticipated winter pressures, we can expect an extraordinary burden will fall on the NHS and those working within it.
To ensure that efforts are sustainable in the weeks and months to come, it is of paramount importance that staff are not working in a manner that compromises their health, safety or wellbeing, nor that of their patients.
The T&Cs (Terms and Conditions of Service for NHS Doctors and Dentists in Training (England) 2016) contains a nationally agreed range of safe working hours restrictions and rest requirements, designed to protect junior doctors from excessive fatigue and burnout.
It is therefore crucial that these protections must continue to be applied in full whilst managing the ongoing COVID-19 pandemic. All junior doctor rotas, including COVID-19 rotas, must adhere in full to the T&Cs.
Read more about the how the BMA believes junior doctor rotas should be managed during the second wave of the pandemic.
Changes to your rota and pay
If you are given a new rota or it is revised, it must be appropriately analysed to calculate your pay in accordance with the requirements of the 2016 TCS, even if the new rota does not comply with all the hours and rest limits of the 2016 TCS.
This includes the provisions regarding basic/enhanced hours, average weekly hours, weekend allowance, on-call allowance, etc.
This does not need to take the form of a full formal work schedule, but must at a minimum contain:
- a clear rota template
- calculation of hours and rest requirements (including prospective cover of out of hours)
- pay breakdown.
Flexibilities within the contract
The contract currently allows for some flexibility in clearly defined circumstances.
Whilst all reasonable steps should be taken to avoid rostering junior doctors at a weekend frequency greater than one in three, where there is a clinically defined reason trainees may be rostered to work at a frequency of one in two weekends.
A doctor may chose to voluntarily opt out of the WTR average weekly limit of 48 hours worked. Where a doctor has opted out of the WTR average weekly working hours, overall hours are restricted to a maximum average of 56 hours per week.
No more than four long shifts and a maximum of seven shifts of any length should be rostered or worked on consecutive days. However, the maximum number of consecutive shifts can be increased by one to a maximum of five and eight respectively with the agreement of the affected doctors.
If you have a concern with the proposed rota
You should make your employer aware of these concerns at the first opportunity, outlining why you believe you will be unable to work the proposed rota.
Your employer should then discuss these concerns with you and explore any possible solutions, or any alternative arrangements that can be made for you.
In the absence of any mutually agreed measures your employer cannot expect you to work on the proposed rota if your individual concerns have not been addressed.
Please contact the BMA if you require assistance with raising concerns over a proposed rota.
If your new rota results in you working above your LTFT percentage
This is not allowed and the training percentage of an LTFT (less than full time) doctor must be protected. In addition, if an LTFT doctor decides to remain as an LTFT doctor then their rostered average weekly working hours must remain below 40 hours per week.
An LTFT doctor may voluntarily decide to temporarily increase their LTFT percentage in response to the pandemic, but an employer cannot request that an LTFT doctor work above their percentage. An LTFT doctor may also voluntarily choose to work additional shifts on an ad-hoc basis.
Where an LTFT doctor does decide to increase their LTFT percentage, then they should be provided with a revised work schedule with their pay adjusted in accordance. HEE have clarified that any doctor who does increase their LTFT percentage during the pandemic will be able to return to their original percentage at any point.
Float and shadow rotas
We are aware that some employers are seeking to develop and implement 'shadow' or 'float' rotas, where doctors must be available for defined periods with the potential to be called upon at short notice to perform a full shift.
This practice is not compliant with 2016 T&Cs.
However, given the current pressures, this practice could be temporarily accepted if, for the purposes of hours and pay, the rota contained the most intensive option in terms of shift a doctor could be asked to work that day.
The BMA recommends the doctor should be paid the value of this full shift, regardless of whether they are called in or not. Any pay arrangements for such rotas will be subject to local negotiation and agreement.
My employer has asked me to opt out of the WTR - what would it mean for me?
Opting out of the WTR (Working Time Regulations) is a voluntary decision for each individual doctor and no employer can demand a doctor opt out of the WTR. Read more about the Working Time Regulations and opting out.
Opting out during the pandemic only
If you are happy to opt out of the WTR, then you can at the time state that this is for a specified period or indefinitely.
- The BMA recommends all opt-outs signed during the current pandemic have a specific time limit from the outset.
- If you have signed an opt-out, you can withdraw this opt-out at any time.
- You must provide your employer with seven days’ notice, although the notice period can be up to a maximum of three months.
- We would recommend that you ensure that any opt-out you sign has the shortest possible notice period.
- The optional WTR opt out does not apply to LTFT trainees, as to be working less than full time you need to work less than 40 hours per week.
What if an employer invokes regulation 21 of the WTR?
Regulation 21 of the WTR identifies ‘special cases’ in which workers will not be entitled to benefit from certain rest and breaks entitlements.
The special cases include 'where the worker’s activities are affected by an occurrence due to unusual and unforeseeable circumstances, beyond the control of the worker’s employer' or 'exceptional events' or 'an accident or the imminent risk of an accident'.
If an employer invokes regulation 21 of the WTR, junior doctors will not be entitled to the following rest requirements:
- a minimum 11-hour rest in any 24-hour period
- 24 hours’ uninterrupted rest every seven days, or two such rests every 14 days, or a single 48 rest every 14 days
- an uninterrupted rest break of at least 20 minutes every six hours
- a limit on night work for night workers.
In the event that regulation 21 is activated, the controls of regulation 24 which require equivalent 'compensatory rest' to be given, still apply in most circumstances.
Let us know
If your employer is considering invoking regulation 21, then please inform the BMA by emailing [email protected] with the subject line including 'Reg 21:'.
Please provide us with all the details available to you regarding this case.
Working on a bank holiday
Your employer can ask you to work on a bank holiday, even if you have it booked off. However, they should provide you with as much notice as possible if you were not previously rostered to work.
If you do any work, including being on-call, on a bank holiday then you must be paid for the hours you work and receive a standard day off in lieu that you should be able to take at a time of your choosing in the future.
ARCP COVID outcomes
Outcomes 10.1 and 10.2 have been introduced for consideration by ARCP (annual review of competence training) panels across the UK, and for all grades and specialties. This is to track the impact of COVID on junior doctor progression and training and assist in administration.
These new, no fault outcomes ensure that trainees that have had their ability to acquire competencies and capabilities affected due to COVID can still progress.
Medical royal colleges have revised their curricula to identify where it is possible to proceed through training. This also ensures there is time to acquire those competencies that were missed.
There are two different types of outcome 10.
- 10.1. Progress is satisfactory, but acquisition of competencies/capabilities have been delayed by COVID-19 disruption. The trainee is not at a critical progression point, so may progress to the next stage of their training. Additional training time will be assessed at the next ARCP.
- 10.2. Progress is satisfactory, but acquisition of competencies/capabilities have been delayed by COVID-19 disruption. The trainee is at a critical progression point, and additional time is required.
A critical progression point could be:
- the end of your core training programme
- your CCT (certificate of completion of training) date
- the point in training where you would normally require an exam to proceed to the next stage of training.
However, this is not a finite list and your progress through training may have other key progression points.
You will be able continue through to your next stage of training, including access to pay nodes as appropriate in your contract.
Some specialties may allow you to progress using an outcome 10.2, even if you are at a critical progression point. Make sure that you are up to date with the developments in your specialty curriculum.
The introduction of outcome 10s do not prevent the continued use of normal ARCP outcomes, depending on the circumstances of your training.
Outcome 10.1 or 10.2 should not be used instead of awarding an outcome 1 or 6 if the trainee fulfils the requirements for these outcomes.
They will be used in place of awarding outcomes 2, 3 or 4, unless the reason for an unsatisfactory outcome is in no way related to COVID-19, and couldn’t have been mitigated were it not for COVID-19.
No ARCP outcome should be a surprise for any trainee. We know that there can be times when communication between supervisors and trainees has been challenging, or trainees are given an outcome that they weren’t expecting.
All trainees that receive an outcome 2, 3, 4, 10.1 or 10.2 will require a meeting with a senior educator, or ARCP panel member, within two weeks of being informed of their ARCP outcome. This is to provide a full explanation of how and why the decision was reached.
Contact us if you need support you with your appeal or any other issues in your postgraduate training that you face.